Roberts's Résumé

It's distinguished, conservative, and a product of the Reagan era.

Terry Eastland

August 30, 2005 11:20 AM

LIKE PRESIDENTS BEFORE HIM, George W. Bush has turned to the lower federal bench, specifically to the appeals court in Washington, D.C., to choose a Supreme Court justice. John Roberts has been a circuit judge for two years, but the more salient aspect of his résumé is the time he spent in another part of the federal government--the executive branch.

Of the current justices, only Clarence Thomas served in the executive branch as long as Judge Roberts did--roughly eight years. Justice Thomas worked for a department (Education) and an agency (Equal Employment Opportunity Commission) of recent creation (1965 and 1979, respectively). Both are distant suburbs in the modern administrative state. Judge Roberts, in contrast, worked in its downtown, his jobs entailing frequent consideration of presidential authority.

In 1981, he became an assistant to the attorney general, who is, thanks to the 1789 statute creating the position, the president's chief legal adviser. In 1982, Judge Roberts went to the White House counsel's office, which dates to the New Deal and whose staff offers judgment on questions involving the president. Leaving for private practice in 1986, Judge Roberts returned to the executive branch three years later as the principal deputy solicitor general. There he represented the United States--and sometimes the president--in the Supreme Court.

Chief Justice William Rehnquist and Associate Justice Antonin Scalia also advised attorneys general and presidents. Before his appointment to the court in 1972, Justice Rehnquist was head of Justice's office of legal counsel. Later, Justice Scalia held the same job. But both men came to Justice having already achieved distinction in the law. For Judge Roberts, it was different: He was just beginning his legal career. His years working for the attorney general and then the White House gave him a basic education in executive power. His years as deputy solicitor general added to it.

Judge Roberts did not join just any executive branch, but the Reagan administration and then (a Reagan legacy) the Bush administration. Ronald Reagan is an essential part of the Roberts résumé, for President Reagan changed the fortunes of a minority party by making it a conservative party whose broadening appeal lifted it to the majority status it enjoys today.

Born in 1955, Judge Roberts was among that young cohort of conservatives inspired by Mr. Reagan and eager to serve in his administration. The thousands of "Roberts documents" from 1981 to 1986 now made public do indeed portray, as the Washington Post has reported, "a young conservative whose views were very much in line with the administration."

The Reagan Revolution (as it was called) had a substantial legal component. Judge Roberts and his colleagues dealt with race preferences and (in Judge Roberts' words) "the so-called right to privacy," with separation of powers and federalism. They also spent late nights explicating and defending presidential power, which they believed had been either unconstitutionally or imprudently fettered in recent years. Recall the great executive-power debates of the Reagan era: over the legislative veto, the independent counsel and the War Powers Resolution.

Some legal analysts see in Judge Roberts' slim judicial record the influence of his formative years--in opinions siding with the United States in terrorism cases, for example. Of course, it is wise not to predict how a justice will turn out, and young Roberts, in a 1985 memo, himself noted that judges tend to "go their own way." But Judge Roberts represents precisely the kind of nominee you'd expect from the president of the party shaped by Reagan.

Notably, Reagan appointed to the High Court lawyers (Sandra Day O'Connor and Anthony Kennedy) less conservative than the young lawyers who worked for him at Justice and in the White House. But if Reagan did not have available to him a John Roberts to put on the court, a Reagan legacy is surely the pool of distinguished lawyers of conservative views who served him and in some cases as well his immediate predecessor and who are now of sufficient age to be considered for the Supreme Court.

Which is to say: There are more lawyers like John Roberts. That prospect is not exactly a happy one for Senate Democrats--all 44 of them.